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Decision No. 12,856

Appeal of FRANK C. ARRICALE from action of the Board of Education of Community School District No. 11 of the City School District of the City of New York regarding a contract of employment.

Decision No. 12,856

(December 21, 1992)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks reinstatement to the position of superintendent of respondent district for a one-year period, effective July 8, 1992 to June 30, 1993, with back pay and benefits. The appeal must be dismissed.

Petitioner was initially employed as respondent's superintendent of schools pursuant to a written contract. The contract provided that petitioner was to serve in the position of superintendent for a three-year term commencing July 1, 1987 through June 30, 1990. Paragraph 5 of the contract provides:

5. The Community Superintendent shall notify the Community School Board in writing of his intention to negotiate a new employment agreement no later than ninety (90) days before the expiration of this Agreement. Subject to such notification from the Community Superintendent, the Community School Board shall notify the Community Superintendent, in writing, of its intention not to renew his employment agreement no later than sixty (60) days before the expiration of this agreement.

On July 3, 1990 respondent adopted a resolution renewing petitioner's employment contract for one year, through June 30, 1991. On May 21, 1991 respondent adopted a similar resolution renewing petitioner's contract for another year, through June 30, 1992.

In March 1992, petitioner informed respondent board of his intention to negotiate a new contract. On April 28, 1992 respondent voted not to advertise for a new superintendent. Respondent subsequently evaluated petitioner pursuant to the dictates of a special circular issued by the Office of the New York City School Chancellor. On July 7, 1992 respondent voted not to renew petitioner's contract. This appeal ensued.

Respondent contends that this appeal must be dismissed as untimely because it was commenced more than 30 days after respondent voted not to renew petitioner's contract. An appeal to the Commissioner of Education must be instituted within thirty days from the decision or the act complained of (8 NYCRR 275.16). On August 3, 1992 my Office of Counsel rejected a July 29, 1992 letter from petitioner requesting the same relief sought in this appeal. At that time, petitioner was supplied with information on how to correctly initiate an appeal before the Commissioner of Education. In the past, it has been held that when a defective petition is returned to a petitioner and a corrected petition is served and filed within two weeks, the appeal has been deemed to have been instituted on the day that a copy of the original petition was served upon the respondent (Matter of Ferraro, 24 Ed Dept Rep 275). In the instant matter, petitioner served a corrected petition on respondent on August 26, 1992, but there is no evidence in the record that the original "petition" was ever personally served upon respondent. I, therefore, find that this appeal was not commenced until August 26, 1992, which is more than 30 days after respondent's decision on July 7th not to renew or extend petitioner's contract. While I may, for good cause shown, excuse the failure to commence an appeal in a timely manner, petitioner has failed to offer any excuse for the late service. Accordingly, the appeal must be dismissed as untimely (see Appeal of Mistretta, 27 Ed Dept Rep 7; Matter of Roth, 23 id. 352.